Stomeni Patrick Kyando vs Republic (DC Criminal Appeal No. 122 of 1997) [1998] TZHC 2408 (24 July 1998)

IN THE HIGH COURT OF TANZANIA' 
 AT MBEYA 
 (DC·) CRil1INAL APPEAL NO. 122 OF ;1997 
 (Original from Mbeya District Court at Mbeya 
in Cr£~inal Case No. 336 of 1996 
 Before: P.A. Lyimo - Resident Magistrate) 
 STOMENI PATRICK KYANDO • o •••• o.. APPELLANT 
Versus 
 THE REPUBLIC ooco•ooc>•oooooooooo P.ESPONDENT · 
 JUDGMBNT 
 The· appellant, Stemen Patrick Kya:ndo, and ,Said Barak.a Nahoma, who is 
yet to appeal, were jointly indicted before the district court of Mb~ya for 
Armed Robbery, contrary to ·sections 285 and 286 of the Penal Code. They 
 were second and first accuseds respectively. They were convicted as-charged 
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 and each sentenced to the statutory minimum imprisonment term prescribed for 
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 the offence of j;E:_irty yea:rs. The .conviction and sentence aggrieved hinl, henc_e 
 this appeal which was resisted before me by the learned state at'to?'hey for 
the Republic, Mr. Mulokozi, in the presence of the appellant, who abided by 
the contents of his memorandum of appeal. 
Akber Kassam:i.ali PW3 is the awner of -the Holiday Lodge and Restaurant 
 at Sokoin~ area within the Municipality of Mbeya. During the night of 
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 25.10.95 at about 3.30 .AM the premises were invaded by.thugs who broke into 
the office after firing two .gun shots i.vl the air and made away with his one 
Video Deck make Sonny (Ext P1) and cash shs.100,000/=• The appellant was not 
identified at the scene of crL~e. About s~ven months later, o~ 15.5.96, the 
investigator A/Sgt Emmanuel PW2 of_Mbeya Central Police Station arrested the 
 appellant at Tunduma in Mb,zi district. It was neither alleged nor-established 
 tb.a.t the appellant was in hidingo Th~ appellant was brought to the police 
 station where, on. being questioned by P~2, he allegedly admitted complicity 
in the crime •. PW2 recorded his cautioned. statement (Ext P3) which 
contained t$ t admission. 
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Before the caution~d statement (Eict P3) was tendered in evidence the 
appellant told the trial court ?iI wrote the statement and signed itu.. In his 
defence the appeilant said 
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1 signed the·~autioned statement.n However. he 
alleged in his defence that he was beaten:by the police at the Central Police 
 Station, 
 The. only evidence against the appellant was his cautioned statement 
 (Ext P3) which was a confession,. The law on confessions is well established. 
Where a confession is the only evidence against an accused person, and the 
prosecution seeks to rely on it, the burden is entirely on the prosecution to 
prove affirmatively that the confession was voluntary and it had not been 
 obtained by improper or unlawful means- SEE section 27(2). of the Evidence 
Act 1967; Ezeki s/o Simbamkali V.Ro (E.A.C.A.) reported i.'1 (1972) H.C.D. 240; 
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 and Rashid V.R. (1969) E.A. 138. The appellant was unrepresented at the t~ial ................. ,._~_,_, _____ _...... 
 by learned Counsel. This court held in Masasila s/o Mtoba v.R .. (1982) TLR 131: 
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Whel"e the admissibility of a confess.ion conies about in 
the ~agie 
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ra tes' courts, in which a trial within a trial 
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 is not strictly applicable, the magistrate should take up 
 the. matter, ru:1;d inquire into the circumstance~ leading up 
to th, taking of the statem~nt in much detail, and ask the 
accused whether he plans to challenge its admissibility., 
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' 
 ·rn this case, it does not come out cl~ly from what the appellant said 
 before the statement was tendered in evidence that the magistrate had fully 
requirement. 
complied with the foregoing . _ · . What. the appellant said was that he 
made the statement and si~ed it. But this was different from saying the.the 
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 had made and signed the :statement voluntarily, PW2 hir:1self did not describe 
 . the circumstances under. which. he had recorded the statement. The appellant 
alleged ill-treatment and torture in l).is defence, and his confession, therefore, 
must be taken ap repudiatedo In all the circumstances of the case, and with 
respect to Mr. Mulokozi, I ·find myself unable to say that, had the learned 
magistrate inquired into the circumstances ,leading up to the taking of the 
 statement in'much detail, and had he given the appellant an opportunity to 
challenge its admissibility, he must inevitably have come to the conclusion 
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 tha the statement was voluntary. 
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 Something else too. A repudiated confession, though as a matter of law 
support a conviction, generally requires as a matter of prudence corrobora- 
curt should accept any confession which has been retracted or repudiated with 
 c ution, and must before founding a conviction on such a confession be fully 
 Jtisfied after considering all the material points a."ld all the circumstances 
 Jf the case that the confession cannot but be true. In all the circumstances 
f this case, I am satisfied that the confession of the appellant, properly 
 considered, fell short of meeting that test, and that corroboration in material 
particular by other accepted evidence, ·which was wanting in. this case, was 
 requiredo 
 For all the foregoing reasons, I allow the appeal, quash the conviction 
of the appellant, set aside his sentence, and hereby order the immediate 
 release of the appellant, Stomen Patrick Kyando, from prison. 
 B.P. !10SHI 
 JUDGE. 
AT MBEYA. 
 24 July 1998. 
For Appellant: Present. 
For Republic: Mr. Nulokozi, S.A.

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